R v Benbrika & Ors (Ruling No 11) - [2007] VSC 580

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1544 of 2006

THE QUEEN

ABDUL NACER BENBRIKA, AIMEN JOUD, SHANE KENT, FADL SAYADI, HANY TAHA, EZZIT RAAD, ABDULLAH MERHI, BASSAM RAAD, AHMED RAAD, SHOUE HAMMOUD, MAJED RAAD and AMER HADDARA

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 December 2007
DATE OF RULING:	21 December 2007
CASE MAY BE CITED AS:	R v Benbrika and ors (Ruling No. 11)
MEDIUM NEUTRAL CITATION:	[2007] VSC 580

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CRIMINAL LAW – Criminal procedure – trial – use by jury of written summaries of relevant intercepted conversations – principles to be applied – fairness to accused – characterisation of summaries as tertiary or third generation data – s 19 Crimes (Criminal Trials) Act 1999 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Maidment SC with Mr N Robinson SC, Mr D Lane and Ms L Taylor	Commonwealth DPP
For the Accused Ezzit Raad	Mr G Barns	Slades & Parsons
For the Accused Taha	Mr J Montgomery SC	Robert Stary & Associates
For the Accused Benbrika	Mr R Van de Wiel QC with Mr A Halphen	Doogue & O”Brien
For the Accused Joud	Mr T E Wraight	Lethbridges
For the Accused Haddara	Mr A D Trood	Robert Stary & Associates
For the Accused Merhi	Mr M Taft SC	Robert Stary & Associates
For the Accused Ahmed Raad	Mr J McMahon	Robert Stary & Associates
For the Accused Sayadi	Ms N Karapanagiotidis	Robert Stary & Associates
For the Accused Majed Raad	Mr G P Mullaly	Slades & Parsons
For the Accused Bassam Raad	Mr B Lindner	Robert Stary & Associates
For the Accused Kent	Mr J O’Sullivan	Robert Stary & Associates
For the Accused Hammoud	Mr D Brustman	Victoria Legal Aid

HIS HONOUR:

Section 19 of the Crimes (Criminal Trials) Act 1999 (Vic) permits a trial judge to provide a wide range of documents to a jury "for the purpose of helping the jury to understand the issues." He may do this on the application of a party or of his own motion. There is no express restriction on the power unless such restriction can be construed from the opening words of the section quoted above.

The list of documents to which the section applies specifically refers to every class of document one could imagine in a criminal trial and concludes with an omnibus category, "any other document that the trial judge thinks fit."

The list in s 19 specifically includes any schedules, chronologies, charts, diagrams, summaries or other explanatory material.

In this trial, in reliance on s 19, the Crown seeks to put before the jury a series of 225 large charts on A3 paper on which are summarised 481 separate conversations relied upon as part of the Crown case. The chart sets out full particulars of these conversations, the participants in them, the date and time they occurred and whether they were recorded from a listening device or from an intercepted telephone call.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] VSC 580
Decision Date: 21 December 2007

CaseChat Overview and Summary

The case of R v Benbrika & Ors (Ruling No 11) involved multiple accused who were facing serious criminal charges. The primary dispute centred around the use of written summaries of intercepted conversations during the trial, with a focus on whether these summaries could be used by the jury in a manner that would be fair to the accused. The matter was heard in the Supreme Court of Victoria.

The court was tasked with determining the legal principles governing the use of these summaries, particularly whether they could be characterised as tertiary or third generation data, and what implications this had under section 19 of the Crimes (Criminal Trials) Act 1999 (Vic). The key issue was ensuring the fairness of the trial to the accused while also balancing the practicalities of presenting complex evidence.

In addressing these issues, the court considered the nature of the summaries and whether they constituted a form of third generation data, which could be subject to different evidentiary rules. The court examined the principles of fairness and due process, emphasising that the jury must have access to all relevant evidence in a comprehensible form. The court concluded that, provided certain safeguards were in place, the use of such summaries could be permissible. The court outlined specific criteria that must be satisfied to ensure that the trial remained fair to the accused.

The final orders of the court included guidelines for the use of written summaries of intercepted conversations, ensuring they were prepared in a manner that did not prejudice the accused and that the jury could understand the evidence. The court also mandated that any such summaries be disclosed to the defence in a timely manner, allowing for proper cross-examination and challenge. These orders aimed to strike a balance between the need for effective presentation of evidence and the preservation of the accused's rights.

Orders